People released from indefinite immigration detention following a High Court ruling last month could be re-detained if they are found to pose an unacceptable risk of committing a serious violent or sexual offence, under new legislation to be proposed by the Albanese government.
The preventative detention model, to be introduced in the Senate later this week, would amend the Criminal Code, giving the Immigration Minister power to apply to a Supreme Court for a Community Safety Detention Order.
The government is hopeful the Coalition will support the model, after calling for it last week, allowing the legislation to be passed in the final sitting week of the year. The House of Representatives will sit for the last time on Thursday.
A court would consider whether there was a high degree of probability, based on evidence gathered by the Department of Home Affairs, that a non-citizen posed an unacceptable risk of committing a serious violent or sexual offence.
It could then detain the individual for up to three years at a time, with the decision reviewed on an annual basis, in legislation which models laws for terrorism offenders, under the High Risk Terrorism Offenders scheme.
The legislation would apply to people who had previously been convicted of these serious offences under state, territory or Commonwealth law, as well as in foreign countries.
The court must also consider whether less restrictive measures such as a supervision order - which would vary on a case-by-case basis, or existing visa conditions, would be effective in mitigating any risk posed by the person to the community.
The government has introduced a tranche of legislation following the High Court's ruling in November, which determined it was unlawful to detain a person in immigration indefinitely when there was no prospect of removing them from Australia in the foreseeable future.
This forced the government to release 148 people into the community, some of whom have been convicted of crimes and served their prison sentences before being detained.
Emergency legislation, rushed through Parliament in November, means former detainees are subject to visa conditions which could require them to wear electronic monitoring devices, adhere to curfews and seek approval before entering a range of employment types, including those relating to vulnerable people and children.
The Coalition voted down legislation to place further restrictions on detainees released into the community last Monday, calling on the government to go further and introduce a preventative detention model.
Home Affairs Minister Clare O'Neil last Friday told the ABC, the government would not be "leaving here until a preventative detention regime is in place".